U.S. Supreme Court refuses marriage case

NEWS

by Lisa Keen

The U.S. Supreme Court refused Tuesday, October 10 to hear
the appeal of a gay couple in California who pressed a controversial lawsuit
seeking to challenge the state's refusal to issue them a marriage license.

The high court denied the couple's appeal just five days
after a California appeals court ruled in another case that the state's refusal
to grant marriage licenses to same-sex couples did not violate the state's
constitution. That decision â€“ a consolidation of six cases that stemmed
from the issuance of marriage licenses by San Francisco in 2004 â€“ is now
being appealed to the state supreme court. [See story, page 1.]

It was February 2004, following a landmark ruling in
Massachusetts that same-sex couples had a constitutional right to receive
marriage licenses, when San Francisco Mayor Gavin Newsom directed the city
clerks to issue licenses to same-sex couples. That same month, Arthur Smelt and
Christopher Hammer applied for a marriage license in Orange County. The two men
had been together for nine years, exchanged wedding rings, participated in a
wedding ceremony, and registered with the state as domestic partners. But they
were turned down in Orange County and filed a lawsuit challenging that rejection.

The lawsuit, Smelt v. Orange County
, did not have the support of the gay legal
establishment, primarily because they filed it in federal court. (The San
Francisco cases, known as In Re Marriage Cases
, were filed in the California state court.) Many gay
legal strategists fear that the federal court system is not a friendly forum in
which to seek equal protection on marriage right now. They feared the Smelt
case, if taken to the U.S. Supreme Court too soon,
could result in a negative decision that could setback efforts to achieve
equality in marriage for many years.

"Bringing the wrong suit in
the wrong way, even for the right objective, could do serious injury not only
to our right to marry, but also to the broader range of lesbian and gay rights,"
said Evan Wolfson, head of the national Freedom to Marry organization and a
leading attorney in the fight for equal marriage rights.

If the Supreme Court had taken the
case and ruled on the right of California to deny marriage licenses to same-sex
couples, the ruling would have applied nationally â€“ good or bad.

The couple's attorney, Richard C. Gilbert, said gay legal
activists were being too cautious and said the lawsuit was a simple and direct
attempt to correct a wrong against his clients.

Gilbert said Wednesday that his clients may try their
lawsuit again after the California Supreme Court makes its ruling in the San
Francisco cases.

"I am willing to represent any other same-gender could
without any fee to me to keep fighting in the federal court where this case
belongs," Gilbert said.

In order to hear an appeal at the U.S. Supreme Court, at
least four justices must agree to take the case. The court's refusal marks the
end of the line for the Smelt case. But
the legal battle over equal rights for gays is far from over and gay legal
activists have a case in federal court regarding the constitutional ban on
marriage in Nebraska. (That lawsuit, they say, is not about marriage per se,
but about the constitutional amendment's effect of
preventing gays from petitioning the legislature to address their needs. That
lawsuit won at the lower federal court level but was overturned at the circuit
court level. At press time, there was no word on whether activists would
attempt an appeal to the U.S. Supreme Court.)

"The typical pattern of civil
rights advances in America is that national resolution comes after a period of
patchwork in which states proceed at different speeds ... toward equality,"
said Wolfson, following the news that the Supreme Court rejected the Smelt
case. "This effort to get the Supreme Court to give a
national answer to the injustice of marriage discrimination was premature, and
predictably failed. Couples, like this one, who rightly want the freedom to
marry should devote their efforts now to the crucial first steps of telling
their stories, enlisting more allies, persuading more states to end their
exclusion from marriage, and lay the groundwork for ultimate national
resolution, rather than bringing ill-timed and ill-prepared litigation."